Kropinyeri v Police - [2005] SASC 385

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KROPINYERI v POLICE
Judgment of The Honourable Justice Duggan
30 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - global penalty of eight months' imprisonment imposed by magistrate who directed that one month of sentence be served pursuant to Criminal Law (Sentencing) Act 1988, s 38(2a) - whether magistrate erred - appeal allowed for limited purpose of suspending entire sentence.
Criminal Law (Sentencing) Act 1988 s 38(2a), referred to.
Jamieson v Police [2004] SASC 335, discussed.

KROPINYERI v POLICE
[2005] SASC 385
Magistrates Appeal

DUGGAN J. The appellant pleaded guilty to two counts of unlawful wounding committed in the course of the same incident which took place on 24 December 2004. She was sentenced to a global penalty of imprisonment for eight months. Pursuant to s 38(2a) of the Criminal Law (Sentencing) Act1988 (“the Act”) the magistrate directed that the appellant serve one month of the sentence. The remainder of seven months’ imprisonment was suspended upon condition that the appellant enter into a bond in the sum of $200.00 to be of good behaviour for the period of seven months following her release from prison. The terms of the bond also required the appellant to be under the supervision of a community corrections officer and obey that officer’s lawful directions as to the attendance of the appellant at drug and alcohol programmes.
The appellant has appealed against sentence. The only ground of appeal argued on the hearing of the appeal was that the magistrate erred in applying s 38(2a) of the Act. It was argued that the entire sentence should have been suspended.
The offences were committed while the appellant was staying with her daughter Delhia Kropinyeri and Delhia’s boyfriend Alwyn Karpany at Mount Gambier. Also residing at the house were Delhia’s two children aged 12 years and 15 months respectively.
At approximately 11.30 pm on Friday 24 December 2004 Delhia and Alwyn left the house to get some milk. They then decided to go to the South Eastern hotel. They returned to the house at approximately 12.10 am.
When the couple returned, an argument ensued between them and the appellant. The appellant had been drinking heavily throughout the day. In the course of the argument the appellant took up a knife and stabbed Alwyn in the abdomen. She also stabbed Delhia in the left side of the stomach.
The victims were conveyed to the Mount Gambier Hospital. Delhia underwent a repair of a perforation in her bowel. She was hospitalised for four days. She then underwent a long recovery period and, at the time of sentencing, continued to suffer from the psychological effects of the attack. Alwyn was treated for the wound to his abdomen which required a stitch.
In the course of her sentencing remarks the magistrate said;
I am required to balance your personal circumstances against the need for general…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kropinyeri v Police

Details

AGLC: Kropinyeri v Police [2005] SASC 385
Case: [2005] SASC 385
Decision Date: 30 September 2005

CaseChat Overview and Summary

The appeal in Kropinyeri v Police was brought by the defendant, Kropinyeri, against the sentence imposed by the court. The case was heard in the court of appeal. The dispute centred around the global penalty of eight months' imprisonment that was imposed by the magistrate, with a directive that one month of the sentence be served in accordance with section 38(2a) of the Criminal Law (Sentencing) Act 1988. The defendant contested the legality of the sentence and sought an appeal on the grounds that the magistrate had made an error in imposing the penalty.

The primary legal issue that the court had to decide was whether the magistrate had erred in imposing the sentence. The court was required to examine the sentence and determine if it was just and appropriate. This involved a review of the sentencing principles and guidelines, as well as the relevant statutory provisions. The court also had to consider whether the sentence was within the powers of the magistrate and if there were any errors in the application of the law.

The court found that there was indeed an error in the magistrate's imposition of the sentence. The court held that the entire sentence should have been suspended, rather than only one month. The court allowed the appeal for the limited purpose of suspending the entire sentence, and the case was remitted to the original court for reconsideration of the sentence in light of the court's findings. This decision underscores the importance of ensuring that sentencing decisions are made in accordance with the law and that any errors are rectified to maintain the integrity of the judicial process.

Orders